More on What Is the Bush Doctrine

posted Mar 05, 2003

In September, President Bush unveiled a new military
strategy that supports US right to preemptive strikes. "Legal scholars
and international jurists often conditioned the legitimacy of
preemption on the existence of an imminent threat—most often a visible
mobilization of armies, navies, and air forces preparing to attack,"
the strategy document states. It continues, "We must adapt the concept
of imminent threat," and goes on to assert the right to strike first
even if no imminent threat exists.

In international law there is a distinction between preemption and prevention. Preemption is the use of force when an imminent threat exists, and as the Bush's policy document states, is legal. Preventive attack,
on the other hand, is the use of force when no imminent threat exists.
A number of legal experts and critics, including Senator Edward
Kennedy, have argued that Bush's policy is more accurately described as
preventive, and is therefore in violation of international law.

Henry Kissinger stated in the Chicago Tribune that an
attack in the absence of imminent threat "runs counter to international
law, which sanctions the use of force only against actual, not
potential threats." That doctrine dates to the 1648 Treaty of
Westphalia, which ended the Thirty Years War, Europe's last major
religious conflict. The doctrine was strengthened and codified with the
establishment of the United Nations, whose charter was signed and
ratified by the United States, which played a major role in pushing for
the international body. Under the charter, nations may go to war with
other nations only in defense. Indeed, in the Nuremberg trials of the
Nazis after World War II, one of the major accusations was that the
Nazis had waged "aggressive war"—that is, non-defensive war—against
other nations. The US was a leader in bringing the Nazis to justice
under international law.

A report by the Lawyers' Committee on Nuclear Policy
states: "Under the UN Charter, there are only two circumstances in
which the use of force is permissible: in collective or individual
self-defense against an actual or imminent armed attack; and when the
Security Council has directed or authorized use of force to maintain or
restore international peace and security. Neither of those
circumstances now exist. Absent one of them, U.S. use of force against
Iraq is unlawful."

Yale Law Professor Bruce Ackerman points out that it
was US Secretary of State Daniel Webster who in 1842 pioneered the
principle in international law that raids of another country's
territory are permitted only if there is an immediate "necessity of
self-defense, instant, overwhelming, leaving no choice of means and no
moment for deliberation"—and only if nothing "unreasonable or
excessive" is done by the raiding force.

Under the new Bush doctrine, Pakistan, a nuclear power,
would be authorized to invade India, Israel to invade the entire Middle
East, and Russia to attack Georgia. In fact, Russia has already
referenced the new doctrine in threatening to attack Georgian
territory, where they claim Chechen rebels have taken refuge.
Furthermore, the fear that a hostile nation might be contemplating a
preemptive attack could easily provoke a nation to attack.

For more information about the new National Military Strategy for the United States of America, see:

"Shape, Respond, Prepare Now -- A Military Strategy for a New Era," The Joint Chiefs of Staff, www.dtic.mil/jcs/nms/

"The Bush Doctrine of Preemption," speech by Senator Edward Kennedy on the Senate Floor, October 7, 2002, www.truthout.org/docs_02/10.09A.kennedy.htm

"Why First Strike Will Surely Backfire" by William
Galston (professor of public affairs at the University of Maryland and
from 1993 to 1995 deputy assistant to President Clinton for domestic
policy, Washington Post, 6/16/02, www.washingtonpost.com/ac2/wp-dyn/A54644-2002Jun14

"The New Bush Doctrine," by Richard Falk, The Nation, 7/15/02

"Plan Likely to Further Isolate the US," by Sonni Efron and Carol Williams, LA Times, 9/21/02

"Rule of Power or Rule of Law? An Assessment of US
Actions and Policies Regarding Security-Related Treaties," Institute
for Energy and Environmental Research and Lawyers' Committee on Nuclear
Policy, May 2002. www.lcnp.org/pubs/index.htm

"The Legality of Use of Force Against Iraq," by the
Lawyers' Committee on Nuclear Policy, Western States Legal Foundation,
Michael Ratner of the Center for Constitutional Rights, and Professor
Jules Lobel of the University of Pittsburgh Law School.Highlights
of report: "The United Nations Charter is a treaty of the United
States, and as such forms part of the supreme law of the land under the
Constitution, Article VI, Clause 2. The UN Charter is the highest
treaty in the world, superseding states' conflicting obligations under
any other international agreement. (Art. 103, UN Charter)" www.lcnp.org/global/iraqstatement3.htm

Producing in-depth, thoughtful journalism for a better world is expensive – but supporting us isn’t. If you value ad-free independent journalism,
consider subscribing to YES! today.